Rx & The Law

Can I Get Sued For That?

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

One of the questions that I get asked a lot is, “Can I get sued for that?”  Unfortunately in today’s world, I have to answer yes; almost anyone can sue for almost any reason.  While there are rules against filing frivolous lawsuits, the filing has to be pretty egregious to be considered frivolous.  There are two better questions that get to the heart of what pharmacists really want to know; Do I have exposure for that activity and Do I have coverage for it?

Since the bar is pretty low for the filing of a lawsuit, it is almost a given that you can be sued for any activity.  However, that doesn’t reflect your exposure in that case.  Filing a suit is quite different from winning a suit.  The plaintiff will still have to prove the four elements of negligence in order to win their case.  Let’s use pharmacist-administered vaccinations as our example.  An analysis and evaluation of the pharmacist’s duties and possible breaches of those duties is the first step.  Was the protocol followed, was the patient a proper recipient under the protocol, was the proper vaccine given, was it given properly, was the patient given proper information about the risks and benefits of the vaccine?  If the answer to all of these questions is yes, then the pharmacist’s exposure is low.  If not, then additional analysis is needed to see if the breach (or breaches) was the direct cause of the patient’s injury.  For example, the patient was allergic to eggs, but received the vaccine and suffered an allergic reaction.  If this were true, then the pharmacist’s exposure is higher.

For any new service, the pharmacist should consider what duties are required for them to provide the service, the possible ways that those duties could be breached, and the possible injuries that could result from that breach.  In this way, the pharmacist can evaluate their exposure for providing any new service.  As you can see, this is more in depth than merely asking if you can be sued if you administer vaccines.

The second important question is whether there is insurance coverage for the activity in question.  Insurance policies typically provide two types of coverage; loss coverage and defense coverage.  Loss coverage is the portion of the policy that covers the damages exposure that we have already discussed.  This is obviously very important to have for any activity that a pharmacist performs.  Equally important is the defense coverage.  This is the portion of the policy that pays for defense attorneys, expert witnesses, court reporter fees, etc.  Defense coverage is available in two forms.  In one version, the defense costs are included in the loss coverage limit.  In this version, if $50,000 is spent on defense costs, then only $950,000 of a $1 million limit is left to pay a loss.  This becomes very important in a case that is long and expensive to defend.  In the other version, the defense coverage is separate from the loss coverage and doesn’t erode the loss limits.  In either case, if the loss is covered, the defense coverage provides for the defense of the suit, no matter how frivolous or low the exposure might be.  Because of the high cost of legal services, the defense coverage can be an important asset for any pharmacist to have.  Even defending a frivolous suit could cost thousands of dollars.

Can a pharmacist be sued for a given activity?  The answer is almost certainly yes.  But that should not stop a pharmacist from providing inventive, progressive patient care.  A more in-depth analysis of the true exposure is required along with verification of insurance coverage for that exposure.  There may be activities that are determined to be too risky, but that shouldn’t stop pharmacists from continually striving to provide the best possible care for their patients.